République démocratique du Congo v. Société Divine Inspiration Group (Pty)

At a glance

Parties

Democratic Republic of the Congo (applicant for annulment) v. Divine Inspiration Group (Pty) Ltd (DIGOil), South Africa

Case no.

Cour d'appel de Paris, RG No. 19/07260 (judgment No. 01/2020); underlying ICC Case No. 22370/DDA

Forum and rules

Action to set aside an ICC award seated in Paris, under Articles 1520(3) and 1520(5) of the French Code of Civil Procedure

Court

Cour d'appel de Paris, International Commercial Chamber (Pôle 5 – Chambre 16): François Ancel (President), Fabienne Schaller, Laure Aldebert

Underlying award(s)

ICC award rendered in Paris on 7 November 2018 by Christine Lécuyer-Thieffry (President), Grégoire Bakandeja Wa Mpungu and Ghizlane El Idrissi

Treaty

None. Production sharing contracts governed by Congolese law, with ICC arbitration clauses (Article 30)

Sector

Oil and gas; hydrocarbon exploration

Outcome

Set-aside action dismissed and exequatur granted to the award (7 January 2020). DIGOil's claim for abusive proceedings was rejected.

Amount

Award: USD 617,400,178 plus interest; ICC arbitration costs of EUR 691,437; DIGOil's defence costs of USD 1,109,933.62. Court costs: the DRC must pay EUR 30,000 under Article 700 of the Code of Civil Procedure, plus the costs of the proceedings.

The dispute

The DRC signed two production sharing contracts with consortia that included DIGOil, a South African company. The first, of 14 December 2007, covered Blocks 8, 23 and 24 of the Cuvette Centrale. The second, of 21 January 2008, covered Block 1 of the Albertine Graben. The President of the DRC never issued the decree approving either contract, and the State awarded Block 1 to another consortium (Caprikat Ltd and Foxwhelp Ltd). In an ICC arbitration seated in Paris, the tribunal held the DRC at fault, terminated both contracts at the DRC's sole fault and awarded DIGOil USD 617,400,178 plus interest. The DRC applied to set the award aside. It argued that the tribunal had exceeded its mandate and breached international public policy by refusing to follow a 10 December 2010 ruling of the DRC Supreme Court of Justice. That ruling held that presidential approval of oil contracts is a discretionary power with no time limit.

Key holdings

1. The tribunal did not breach its mandate (Article 1520(3)). It decided the case under Congolese law, in particular the 1981 hydrocarbons law, and it expressly considered the 2010 Supreme Court ruling and distinguished it on the facts. Reviewing how the tribunal applied that law would amount to a review of the merits, which is outside the court's role. ¶¶ 19–30
2. A tribunal bound to apply the law of the DRC does not depart from its mandate by interpreting that law. ¶¶ 31–32
3. No breach of international public policy (Article 1520(5)), understood as the French legal order conceives it. The tribunal interpreted the consequences of the missing presidential decree in light of Congolese law, including the Supreme Court decision. Even if it departed from that decision, which was given in different circumstances, it disregarded no fundamental value or principle. ¶¶ 33–35
4. Under Article 1527 of the Code of Civil Procedure, dismissal of the set-aside action confers exequatur on the award. ¶ 36
5. DIGOil's claim for damages for abusive proceedings failed. It proved neither fault or blameworthy carelessness by the DRC, which may have misjudged the extent of its rights, nor any harm beyond its defence costs. ¶¶ 37–38
6. As the losing party, the DRC must pay the costs of the proceedings and EUR 30,000 to DIGOil under Article 700. ¶¶ 39–40; operative part

Procedural history

1. 14 December 2007Production sharing contract signed for Blocks 8, 23 and 24 of the Cuvette Centrale.
2. 21 January 2008Production sharing contract signed for Block 1 of the Albertine Graben.
3. 7 November 2018ICC award rendered in Paris (Case No. 22370/DDA): the DRC is held at fault and ordered to pay USD 617,400,178 plus interest and costs.
4. 2 April 2019The DRC files its action to set aside the award.
5. 19 November 2019Hearing before the Paris Court of Appeal.
6. 7 January 2020Judgment: set-aside action dismissed and exequatur granted.

Tribunal, counsel and experts

Decided by

• François Ancel Judge, Cour d'appel de Paris (President of the chamber)
• Fabienne Schaller Judge, Cour d'appel de Paris
• Laure Aldebert Judge, Cour d'appel de Paris

For the claimant

Charlotte Mochkovitch · Denis Bensaude

For the respondent

Ministry of Justice of the DRC · Michel Pombia

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Keywords

• DIGOil
• set-aside
• annulment of award
• Article 1520 Code of Civil Procedure
• excess of mandate
• international public policy
• exequatur
• Article 1527 CPC
• production sharing contract
• presidential approval decree
• Albertine Graben
• Congolese law
• Supreme Court of Justice DRC
• no review of the merits
• abusive proceedings
• ICC
• New York Convention Article V(1)(e)
• oil and gas

Summary generated with AI from the published documents — refer to the award for the authoritative text.